IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE
February 2, 2011 Session
STATE OF TENNESSEE v. ALECIA DIANE COOPER
Appeal by Permission from the Court of Criminal Appeals
Circuit Court for Bedford County
No. 16624 Franklin L. Russell, Judge
For Publication
No. M2009-00848-SC-R11-CD - Filed March 4, 2011
ORDER
After being arrested late on the evening of January 26, 2008 for erratic driving, failing
field sobriety tasks, and registering a blood alcohol content of .22 percent, the Defendant,
Alecia Diane Cooper, was charged with alternative counts of: (1) driving under the influence
of an intoxicant (DUI) and (2) driving with a blood alcohol concentration of .08 percent or
more (DUI per se). Tenn. Code Ann. § 55-10-401(a)(1) & (2) (2004). She pled guilty to
both counts. At the conclusion of a sentencing hearing, the trial court entered judgments on
each count, sentencing the Defendant to concurrent terms of eleven months and twenty-nine
days to be served at one-hundred percent release eligibility, but subject to furlough release
after ninety days upon completion of an in-patient alcohol treatment program.1
1
The judgment stated that the Defendant
[m]ay apply for a furlough so that the Defendant can be released after
ninety days into a residential program; furlough will remain in effect for
entire period of in-patient treatment, although Defendant will not receive
any jail credit for treatment period; if Defendant successfully completes in-
patient treatment, will be placed on supervised probation immediately upon
completion of in-patient treatment and will remain on supervised probation
until the expiration of her sentence provided she successfully participates
in an aftercare program, does not drink, and otherwise meets all of the other
conditions of her probation, fine of $350 plus costs imposed and driving
privileges revoked for a period of 1 year; during incarceration the
Defendant will not be eligible for work release due to danger to the public
that she might drive and no furlough will be allowed that is not granted by
(continued...)
In her appeal, the Defendant complained that the trial court failed to properly apply
the principles relevant to misdemeanor sentencing, that her sentence was excessive, and that
the conditional sentence, which had the potential effect of reducing the sentence to less than
one-hundred percent of service, contravened the misdemeanor sentencing statute. The Court
of Criminal Appeals affirmed, holding that the trial court had properly considered both
mitigating and enhancement factors and appropriately concluded that the circumstances of
the offense, the Defendant’s lack of candor, and her prior criminal record, which included
an arrest for driving under the influence in Illinois two weeks prior to this offense, warranted
the maximum sentence. This Court granted the Defendant’s application for permission to
appeal to address whether the condition permitting an application for furlough after ninety
days of a sentence to be served at one-hundred percent complied with the Criminal
Sentencing Reform Act of 1989.
Preliminarily, this court must point out that two judgments of conviction are not
permissible under these circumstances. In State v. Conway, 77 S.W.3d 213 (Tenn. Crim.
App. 2001), the Court of Criminal Appeals held that double jeopardy precludes two separate
judgments of conviction for DUI and DUI per se if they are based upon a single episode.2
Id. at 218. While both counts can be acted upon by a jury without the requirement of an
election, id. (citing State v. Willis, No. 02C01-9810-CC-00336, 1999 WL 487032, at *2-3
(Tenn. Crim. App. July 12, 1999)), if the jury returns verdicts of guilty for both counts, the
trial court should merge the two convictions into one judgment of conviction for DUI. Id.
(citing State v. Cribbs, 967 S.W.2d 773, 787-88 (Tenn. 1998) (holding that, although a
defendant cannot have separate judgments of conviction for both premeditated murder and
felony murder for a single act of murder, both counts should be submitted to the jury and
later merged into one judgment of conviction)). Accordingly, the two judgments of
conviction should be modified to merge the convictions into a single conviction of DUI.
As to the sentencing issue, well-established rules apply. Misdemeanor sentences must
be specific and compliant with the 1989 Act. Tenn. Code Ann. § 40-35-302(b) (2006 &
Supp. 2007). The trial court is, of course, required to provide the defendant with a
reasonable opportunity to be heard as to the length and manner of the sentence. Tenn. Code
Ann. § 40-35-302(a). The facts relevant to sentencing need be established only “by a
preponderance of the evidence and not beyond a reasonable doubt.” State v. Winfield, 23
1
(...continued)
Judge Russell by written court order.
2
DUI and DUI per se contain different elements. See Tenn. Code Ann. § 55-10-401(a)(1) & (2).
“An acquittal of either would not necessarily mean that the state could not establish the elements of the
other.” Conway, 77 S.W.3d at 218.
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S.W.3d 279, 283 (Tenn. 2000). Seventy-five percent of the sentence is the maximum that
can be served prior to eligibility for consideration for any rehabilitative program. Tenn. Code
Ann. § 40-35-302(d). A DUI offender, however, may be required to serve up to one-hundred
percent of her sentence. Palmer v. State, 902 S.W.2d 391, 393-94 (Tenn. 1995); see also
Tenn. Code Ann. § 55-10-403(m) (2004 & Supp. 2007) (“Nothing in . . . the Sentencing
Reform Act of 1989, shall be construed as altering, amending, or decreasing the penalties
established in this section for the offense of driving under the influence of an intoxicant.”).
In determining the percentage of the sentence to be served by the defendant, trial courts must
consider enhancement and mitigating factors, as well as the legislative purposes and
principles related to sentencing. Tenn. Code Ann. § 40-35-302(d).
The trial court has the authority to place a defendant on probation either immediately
after sentencing or after service of a term of periodic or continuous confinement. Tenn. Code
Ann. § 40-35-302(e). The statutory scheme is designed to provide the trial court with
continuing jurisdiction in the misdemeanor case and a wide latitude of flexibility. The
misdemeanant is not entitled to the presumption of a minimum sentence. State v. Creasy,
885 S.W.2d 829, 832 (Tenn. Crim. App. 1994).3 If the trial court’s findings of fact are
adequately supported by the record, an appellate court may not modify the sentence even if
it would have preferred a different result. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn.
Crim. App. 1991).4 The burden is upon the appealing party to demonstrate that a sentence
is improper. Tenn. Code Ann. § 40-35-401, sentencing comm’n cmts.
In Palmer, this Court specifically held that
3
But see Tenn. Code Ann. § 55-10-403(a)(1)(A) (setting forth a minimum sentence of seven days
for first-time DUI offenders who have a blood alcohol content at the time of the offense of .20 percent or
greater).
4
Moreover, in State v. Ashby, 823 S.W.2d 166, 171 (Tenn. 1991), this Court encouraged the grant
of considerable discretionary authority to our trial courts in matters such as these. “[E]ach case must be
bottomed upon its own facts.” State v. Taylor, 744 S.W.2d 919, 922 (Tenn. Crim. App. 1987) (citing State
v. Moss, 727 S.W.2d 229, 235 (Tenn. 1986)). “It is not the policy or purpose of this Court to place trial
judges in a judicial straight-jacket in this or any other area, and we are always reluctant to interfere with their
traditional discretionary powers.” Ashby, 823 S.W.2d at 171 (quoting Moten v. State, 559 S.W.2d 770, 773
(Tenn. 1977)). Appellate review of misdemeanor sentencing is de novo with a presumption of correctness.
Tenn. Code Ann. § 40-35-401(d) (2006); see also State v. Troutman, 979 S.W.2d 271, 274 (Tenn. 1998)
(holding that trial courts did not have to follow the requirement of section 40-35-210(f) to state on the record
what enhancement or mitigating factors were employed in setting sentence length and did not have to follow
the requirement of section 40-35-209(c) to make specific findings of fact on the record when determining
what portion of a sentence for DUI will be served in confinement; rather, they “need only consider the
principles of sentencing and enhancement and mitigating factors in order to comply with the legislative
mandates of the misdemeanor sentencing statute”).
-3-
a misdemeanor offender must be sentenced to an authorized determinant
sentence. Further, a percentage of that sentence, which the offender must
serve before becoming eligible for consideration for rehabilitative programs,
must be designated. While DUI offenders must also be sentenced in
accordance with the [1989] Act, the legislature has specifically excluded DUI
offenders from the provisions of the Act when the application of the Act would
serve to either alter, amend, or decrease the specific penalties provided for
DUI offenders. A trial judge may designate a service percentage in a DUI case
under Tennessee Code Annotated [s]ection 40-35-302(d) but that percentage
may not operate to reduce the mandatory minimum sentencing provisions of
the DUI statute. Consequently, a DUI offender can be sentenced to serve the
entire eleven month and twenty-nine day sentence imposed as the maximum
punishment for DUI so long as the imposition of that sentence is in accordance
with the principles and purposes of the Criminal Sentencing Reform Act of
1989.
902 S.W.2d at 394.
Tennessee Code Annotated section 40-35-302(d) directs that the trial court shall first
establish the percentage of the sentence to be served, and provides that only “[a]fter service
of such a percentage of the sentence, the defendant shall be eligible for consideration for
work release, furlough, trusty status and related rehabilitative programs.” (Emphasis added.)
As structured, the sentence in this case purports to grant the Defendant an opportunity for a
furlough to attend in-patient treatment after the service of only ninety days in jail and, upon
the successful completion of the program and compliance with other conditions, supervised
probation thereafter. Because, under the express terms of the statute, the Defendant is not
eligible for rehabilitative programs until after the service of the designated release eligibility
percentage – in this case, one-hundred percent – the sentence does not comply with the
statute’s restrictions.5
In summary, we conclude that the two judgments of conviction violate the principles
of double jeopardy, and the sentence, as currently structured, violates the express provisions
of the misdemeanor sentencing statute. Accordingly, the judgment of the Court of Criminal
5
The trial court might have accomplished the purposes of this particular sentence by imposing upon
the Defendant a sentence of eleven months, twenty-nine days, with one-hundred percent release eligibility,
suspended after service of ninety days with the remainder to be served on probation, with a condition of
probation that she attend and successfully complete an in-patient alcohol rehabilitation program. This Court
declines, however, to mandate the structure of the Defendant’s sentence, as this is a matter more
appropriately left to the discretion of the trial court.
-4-
Appeals is affirmed, but the case is remanded to the trial court for merger of the two
convictions into a single offense for DUI and for imposition of a sentence compliant with our
statutory guidelines. Costs are adjudged one-half to the State and one-half to the Defendant,
for which execution may issue if necessary.
PER CURIAM
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